Mule v R [2005] HCA 49;

Mule v R [2005] HCA 49; - HCA 2005 case summary — Zoe

[14]

Reference has already been made to Pt VIII of the Criminal Code, relating to videotaped interviews. It was common ground that, subject to the excision of matter which was irrelevant (which happened here), matter the prejudicial effect of which outweighed its probative value, or matter that on some other sufficient ground should have been excluded, if the prosecution wished to tender the videotape it was obliged to tender the whole videotape. (That was argued to be the effect of s 570D(2) of the Criminal Code, and the argument was not controverted.) If there were further exceptions or qualifications to that proposition, there was no suggestion that they applied in the circumstances of this case, and they were not explored. The same practical result may have followed from what was said by Griffith CJ in Jack v Smail[3]. In any event, there was no attempt by the prosecution at trial to tender only those portions of the videotape that recorded the appellant's admissions of possession, and to refrain from tendering those portions which recorded the appellant's assertions as to his purpose of personal use. No question of severance arose and, subject to the agreed excisions, the whole videotape was tendered. It recorded, amongst much else, both the inculpatory statements acknowledging possession, and the exculpatory statements about personal use. At the time of the tender of the videotape, the trial judge and the prosecution would not have known what course the appellant intended to take with respect to calling, or giving, evidence. It is possible that, at that stage, no final decision on that matter had been made. The line taken in cross-examination of the police officer who conducted the search, and who also conducted the interview, suggested that there was no challenge to his evidence, but it would not then have been clear that the defence intended to add nothing to what was said in the interview. By the time the trial judge came to sum up to the jury, however, it was apparent that there was no issue as to the appellant's possession of the tablets, and that the appellant was relying on what was said in the interview, and on the surrounding circumstances, together with the arguments of his counsel at trial, as his answer to the deeming effect of s 11 of the Misuse of Drugs Act.

[23]

"It is important that I tell you that his silence in this case is not evidence against him and does not amount to an admission by him and it cannot be used to fill in any gaps in the evidence tendered by the prosecution if you feel there are some. It may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. The exercise of a right to silence cannot be held against a person and if you think about it it would be bizarre if the law gave a person a right and then permitted the exercise of the right to be held against the person. > > However, you also know that the accused did not totally exercise his right to remain silent when he was interviewed by the police. He could have, if he had wished, not said a word during that process and he did say some things. He had a lawyer there and on occasions he said, 'No comment,' but on other occasions either personally or through his lawyer he said things to police and you have the video of the interview. He chose to, in a sense, speak to the police on the occasions that he did and that interview has been put before you as evidence by the prosecution as part of the prosecution case. > > In a nutshell that evidence was put before you to prove possession, that is, to prove what occurred, basically, to prove the finding of things, to prove - basically to prove possession because in relation to that you will be aware the accused person admits that the drugs were his so it proves that because the accused admitted it. He admits it. He made what the lawyers called admissions and they are obviously against his interests, in other words he confessed. An admission is a confession. He confessed that he was in possession and as is, I think, pointed out by one of the counsel that was an admission against interest and it is given weight in the system. It is not disputed, of course, that he did possess those drugs. > > Now, the video cassette of the interview, given that it has been tendered by the prosecution for the purpose I have just explained, it also, however, becomes material, evidence, for the accused as well as against him; in other words, once it goes in, it can be used for all purposes, legitimate purposes. > > Those parts of the interview that are relied on by the prosecution you can accept as being not disputed by the accused and they are, as I have said, admissions, concessions, if you like, made by the accused person, in the sense that I have just explained, against his interests. > > But the video also contains other matters that the accused person relies on in his case and he relies on his denials of police allegations and also his assertions, for example, his assertion that he intended only personal use. He relies on those statements in the video. Of course, his denials of police allegations and his assertions, such as his assertion of intending personal use, are disputed by the prosecution. > > The denial - his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn't have the same evidential weight, but the accused's denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit." (emphasis added)

[36]

It was not a derogation from the appellant's right to silence for the trial judge to point out that the statements made in the course of the interview were not on oath. The expression "right to silence" is used to refer to a number of distinct legal rules. It is a useful shorthand expression but it is a general description which does not always provide a safe basis for reasoning to a conclusion[9]. In the present case what is important is that the appellant did not give evidence at his trial. In the days when, in most Australian jurisdictions, accused persons were entitled to make unsworn statements in court, it was not regarded as a derogation from their rights for judges to direct juries that what an accused said in these circumstances was to be regarded as "a possible version of the facts" and that jurors should "consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence"[10]. Nor was it regarded as such a derogation for a judge to comment that a statement was not on oath, and was not tested in cross-examination, and might not be considered as weighty as the evidence of witnesses under oath[11]. The trial judge had already, uncontroversially, referred to the fact that the appellant had elected not to give evidence in court. It is difficult to explain the right to silence without drawing attention to the silence. Furthermore, as the judge pointed out, the appellant's silence was not complete. Having referred to the fact that the appellant did not testify on oath in court, having explained that it was his right to remain silent in court, and having warned the jury against inappropriate reasoning, the judge, when he came to deal with the out of court statements made by or on behalf of the appellant, could well have thought it proper to tell the jurors that it was open to them to evaluate those statements in that light. They could also evaluate those statements in the light of the fact that they were self-serving. As a matter of law, it was correct to tell the members of the jury that they were not obliged to attach the same weight to all the statements made in the interview, and that it was for them to decide the weight to be given to particular statements. As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Mule v R [2005] HCA 49; (2005) 221 ALR 85; (2005) 79 ALJR 1573 (8 September 2005)

Parties

Legislation Cited (4)

Cases Cited (10)